STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 02 DHR 1789

GREGORY TABRON, )

)

Petitioner, )

)

v. )

) DECISION

NORTH CAROLINA DEPARTMENT )

OF HEALTH AND HUMAN SERVICES, )

DIVISION OF FACILITY SERVICES, )

)

Respondent. )

THIS MATTER came on for hearing before the undersigned Augustus B. Elkins, II Administrative Law Judge, on February 28, 2003, in Raleigh, North Carolina.

APPEARANCES

Petitioner: Gregory Tabron, Pro se

109 Club Boulevard

Durham, North Carolina 27704

For Respondent: Wendy L. Greene

Assistant Attorney General

North Carolina Department of Justice

P.O. Box 629

Raleigh, NC 27602

ISSUE

Whether Respondent acted erroneously, arbitrarily or capriciously, and/or failed to act as required by rule or law when it substantiated the allegation and entered a finding that Petitioner neglected four residents at John Umstead Hospital in the Health Care Personnel Registry?

EXHIBITS

Respondent's Exhibits 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, 16, and 17 were entered into evidence. The Undersigned took official notice of Petitioner's Exhibit 1.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. John Umstead Hospital's Children's Psychiatric Institute is a residential facility serving children and adolescents. John Umstead Hospital is a health care facility as defined in N.C. Gen. Stat. §131E-256(b), and a hospital as defined in N.C. Gen. Stat. §131E-76(3) and therefore subject to those statutes. T pp. 136, 137

2. At all times relevant to this matter Petitioner worked at the Children's Psychiatric Institute as a health care technician. Petitioner worked on the children and adolescent units approximately three to four days per week. Adolescent patients with emotion and psychiatric problems live and are treated at the adolescent unit. Petitioner worked with four to eight adolescent patients at a time. T pp. 16 - 18

3. Petitioner's duties in the adolescent unit included supervising the children to assure that procedures were properly carried out and that the children's treatment plans were being implemented, and to generally provide for the safe physical and psychiatric care of the patients. T pp. 18, 19, 21

4. Petitioner was trained at John Umstead Hospital through its psycho-social development program. His professional training included methods of communication with patients. He was trained to use non-threatening words when interacting with the patients. On Jan. 25, 2001, Petitioner was trained in how to de-escalate residents and how to use the hospital's overhead page system. Examples of de-escalation procedures include redirecting patients, giving them a time out, and separating them from each other. T pp. 22, 189, 190

5. Petitioner learned that abuse and neglect are strictly prohibited. He understood that there are different types of abuse and understood neglect to be a failure to provide care and/or failure to provide for the safety of a patient. Petitioner remembers receiving training on abuse, neglect and exploitation on May 17, 2002. T pp. 23, 24, 26

6. Petitioner received and signed in acknowledgment a copy of John Umstead Hospital's policy on abuse and neglect. The policy gives as an example of neglect the failure to take care of the physical and psychological needs of a patient. T pp. 25, 26

7. Petitioner felt that he was sufficiently trained to do his job, and had a good understanding of neglect. T pp. 23, 24

8. On May 31, 2002 Petitioner worked second shift on Ward 502, the male adolescent ward. Second shift begins at 2:30 p.m. and ends at 11 p.m. On that day there were five patients assigned to the unit: TC, DM, SW, JP, SJ. Petitioner had worked with those children before because he was a "floater"/”loaner” who worked on that ward about twice a week. Petitioner filled in where and as needed. He had filled in at Ward 502 for about six months. T pp. 27 – 30, 65

9. At all times relevant to this matter DM was a patient assigned to Ward 502. DM testified that at the time of the hearing on this matter he was 17 years old. At the time of the incident leading to allegations against Petitioner, SW and JP were approximately 12 years old. SJ was about 13 or 14 years old. DM knew Petitioner because Petitioner had been assigned to work on three of the wards on which DM lived while receiving treatment at the adolescent psychiatric unit. T pp. 90, 92, 95, 113, 117

10. On May 31, 2002, SW, SJ, DM, and JP returned to the ward from a ceramics and arts and crafts class at about 5:00. TC was not on the ward at that time. Dinner arrived and the patients ate in the living area, at the tables near the T.V. All of the patients present ate dinner except JP, who said he would be leaving in a few minutes. During dinner, Petitioner sat at one of the tables with DM. T pp. 86, 87, 97, 98, 106, 107

11. JP went to another area of the living area, next to SW's door, to play Nerf basketball. After finishing his dinner SJ went over to try to play Nerf basketball with JP. JP said he didn't want to be bothered and told SJ to go away. SJ repeatedly said that he wanted to play and began to get upset. T pp. 98, 99, 107, 109, 113

12. SW then got into the Nerf ball game and there was confusion because he "interrupted" JP. While this was happening, Petitioner sat at a table in the living area with DM. T pp. 99, 110

13. The patients playing Nerf basketball began to argue. Petitioner testified that he redirected them to stop being aggressive and took the ball away from them. DM, however, remembered that Petitioner did not intervene except to tell the boys they needed to sit down. Petitioner didn't try to separate the patients citing it was routine for them to play rough, and normal for adolescent boys to do so. T pp. 35, 37, 38, 87, 115, 119, 125

14. DM heard JP cursing at SJ from where DM was sitting, about 15 - 20 feet away. JP was speaking/cursing in a normal tone of voice, not yelling at that time. While SJ and JP continued to argue Petitioner then went into the office, locked the office gate and sat down. To get to the office Petitioner had to walk past where the two boys were arguing, but he said nothing to them. Further he did not take the ball away from them. He stayed in the office. Remaining in the office placed Petitioner closer to the arguing children than where he had been when sitting at the living area table with DM. T pp. 39, 99, 115, 119, 120, 121

15. SJ said something to SW that upset SW. JP became involved, saying "don't mess with him." SJ pushed SW. DM became involved and told SJ he needed to stop picking on the little kids and told JP and SW to sit down. DM then pushed SW at a wall and pushed SJ into a door, telling him that he needed to chill out. SJ began to holler "my arm, my arm, my arm," cried loudly, and kept saying "my shoulder, my shoulder hurts." Petitioner took no action and “was just looking” at SJ. T pp. 100, 117, 118

16. DM thought he was going to jail because of the incident. He waited for the ward nurse, “nurse Cindy,” to come back on the unit so he could talk to her about the situation. T p. 118

17. At all times relevant to this matter Cindy Roche was a registered nurse employed at John Umstead Hospital as lead nurse. At the time of the incident on May 31, 202 Ms. Roche was assigned to the adolescent unit. As such, she covered two wards, girls and boys. Her duties included supervising the activities, supervising the children, and supervising the health technicians. T pp. 162, 163

18. On May 31, 2002 Ms. Roche was Petitioner's supervisor. Ms. Roche was not on the ward when SJ was injured because TP was being discharged that day and she had accompanied TP outside to discharge him. T pp. 163 - 165

19. When Ms. Roche leaves the ward during the workday she writes her name and beeper number on a Rolodex calendar. The calendar is used to put down appointments and other information for the staff's convenience. It is located on the desk at the nurse's station and is readily available to staff. In addition, there is a directory that lists everyone's pager number. The directory is also readily available. T pp. 165 - 167

20. After discharging TP Ms. Roche went to make some copies. She then returned to the ward. Ms. Roche heard SJ crying as soon as she opened the doors to the ward. DM ran up to her and told her what happened. DM told Ms. Roche that he had pushed SJ into a wall because he was trying to break up a fight. Ms. Roche then went to see about SJ. SJ was standing to the left of the staff work area. SJ kept repeating "I know my shoulder's dislocated." She instructed Petitioner to get some ice and that they should call a doctor. T pp. 101, 168 - 170, 172

21. The overhead page system should be used anytime things are getting out of hand, or if there's an altercation that doesn't respond to redirection. There was no overhead page call that evening. Further, Ms. Roche did not receive a page from Petitioner about the incident. T pp. 167, 174

22. At all times relevant to this matter Alton Hilton was a Licensed Practical Nurse at John Umstead Hospital assigned to the adolescent unit. Mr. Hilton worked on that unit on May 31, 2002. As a LPN, Mr. Hilton works with doctors and nurses to take care of medication orders and treatments, including securing and dispensing medication. Mr. Hilton is not a supervisor. T pp. 152, 153,155, 156

23. Mr. Hilton knows Petitioner because Petitioner was a health care technician on the adolescent ward. He has known Petitioner for about a year. T pp. 155, 156

24. On May 31, 2002, while working on Ward 492 Mr. Hilton received a telephone call from Petitioner. Mr. Hilton was on Ward 492 because he was giving a dinner break to a staff person there. At about 5:30 p.m. Petitioner called and asked Mr. Hilton "do you know where Cindy's at?" Mr. Hilton did not know where Cindy was, and told Petitioner that if he needed her he should call Cindy's pager or do an overhead page. T pp. 156, 157

25. During the telephone conversation Petitioner did not tell Mr. Hilton anything about the incident between the patients. Mr. Hilton told Petitioner he would be up to his ward as soon as he could to give Petitioner a dinner break. T pp. 158, 159

26. After 30 or 35 minutes, when the staff member Mr. Hilton was relieving returned from his dinner break, Mr. Hilton did go up to Ward 502 to give Petitioner his dinner break. Upon arrival, Mr. Hilton learned that one of the children on that ward had been injured. T pp. 158, 159

27. At all times relevant to this matter Billi Wilson was a Unit Nurse Director at John Umstead Hospital, Children's Psychiatric Institute. Ms. Wilson is responsible for the nursing staff on the unit and for delivery of nursing care. Ms. Wilson knows Petitioner because he was at the children's unit when she started working there. T pp. 179, 181

28. Ms. Wilson testified that although the unit tries to reinforce patients' positive behavior and ignore their negative behavior, the unit's primary goal is safety. A patient's negative behavior is ignored if it is not disruptive or dangerous. However the behavior management system calls for use of the overhead page if two prompts to a child do not work to change the child's behavior. Staff are not taught to ignore aggressive behavior. In addition to using an overhead, staff should communicate with their supervisors, such as Cindy Roche, whose unchanging pager numbers are made readily available. T pp. 185, 186, 187, 190

29. The residential unit's staff to patient ratio guidelines call for one staff member per three patients. Federal patient to staff ratios are three to one. By assigning a health care technician per ward, one nurse for two wards (0.5 person per ward), a supervisor assigned for the two wards, and rehabilitation therapy staff member, the adolescent unit generally complies with both the unit and federal mandates. T pp. 181, 182, 184, 185. Residential Treatment-Level III/High Staffing requirements mandate that “a minimum of one staff is required per four recipients at all times.” Though there were 5 patients assigned to Petitioner’s Ward at the date of the incident, one, TC, was not on the ward at the time of the incident.

30. At all times relevant to this matter Mary Curtis was a patient advocate at John Umstead Hospital. Ms. Curtis' responsibility is to ensure that patients' human and civil rights are not violated. Patients' human rights include the right to not be abused, to receive appropriate treatment, and be to free from neglect, exploitation, or physical, emotional or verbal abuse. Ms Curtis has worked with children with psychological problems for approximately 18 years in various capacities. T pp. 137, 138

31. On May 31, 2002, Ms. Curtis was the patient advocate on call. She received a report about an injury on Psychiatric Residential Treatment Facility (PRTF) ward. Ms. Curtis called and investigated on the Sunday following the Friday evening incident. T p. 139